2017 Harvest

Monday, November 21, 2011

On September 12, 2011, Shawn and Trisha Drennan commenced an application against a number of parties connected to Ontario wind farms (see Notice of Application). They allege that they are facing a pending windfarm of upwards of 150 turbines (Kingsbridge II) in which one of the turbines will be as close as 650 metres from their home. Their goal in the application is to obtain a declaration that they are not bound by non-disclosure clauses contained in buy-out agreements of properties to be used as a site for the wind turbines. Their position is that they own property in the proximity of the planned wind farm and that their efforts to gather “key health information” in order to halt the process have been impeded by these clauses. They claim that the clauses contravene the public interest as they conceal “serious public health and safety concerns” by private contract.

The Drennans brought a motion to compel Dr. King, the Chief Medical Officer of Health for the province of Ontario, to be cross-examined as part of the overall application. They are seeking evidence about the adverse health effects associated with living in close proximity to a wind farm “in anticipation of an appeal of the project’s approval to the Environmental Review Tribunal” (hereinafter referred to as the ERT). They say they need the data for an expert’s report, which they claim would have to be prepared. During the hearing of the motion on November 4, 2011, counsel for the Drennans provided two grounds for which Dr. King should be examined as part of the application:

1)In her role as chief medical officer of Ontario, Dr. King can provide “valuable evidence with respect to the effect” of the non-disclosure clauses; and

2)In her report, the doctor makes reference to a report being prepared by the Ministry of the Environment. The second purpose for summoning her to give evidence was apparently to ask if the report is available now and if so, to get a copy of it from her.

Master Joan Haberman, who heard the motion, found that the Drennans failed to meet their onus of providing a reasonable evidentiary record on which she could conclude that Dr. King "probably has any information in the nature of that sought from her or that relates to any of the matters that arise on the pending application." She dismissed the motion and asked the parties to deliver submissions on costs.

Friday, November 18, 2011

The Ontario Superior Court of Justice has thrown out a contamination claim against a former gas station as being out of time. The Defendants in the claim, McColl-Frontenac Inc. and Imperial Oil Limited, previously owned and/or operated a gas station on the lands at issue in the claim. The Plainitffs, who later purchased the lands from intermediate owners, claimed that contamination on the property was caused by the former gas station operation.

The Defendants brought a motion for summary judgment asking that the Court dismiss the claim based on the expiry of the relevant limitation period. In this case, the limitation period was two years and had expired before the Defendants say the Plaintiffs knew they had a claim or should have known they had a claim against the Defendants.

The evidence showed that the Plaintiffs obtained environmental reports when they purchased their property (actually two contiguous properties owned by two companies with a common directing mind). At least one of the reports identified that the property had been used as a gas station at some point in the past. The Defendants argued that a reasonable person would have made inquiries to find out who owned/operated the gas station. The Court agreed:

With the exercise of very little effort, between March 2006 and May 2006, the plaintiffs could quickly have determined that McColl-Frontenac and Texaco (now Imperial Oil) had leased the Bolton Oak property in the 1950s and 1960s. This information could be obtained by searching publicly accessible records at the land registry office and entails minimal expense.

[...]

Put another way, it would be glaringly apparent to any reasonable commercial land purchaser acquiring land known to contain petroleum contamination that, as between:

a) prior use of the property as a veterinary hospital by the vendor; and

b) prior use (pre-vendor) of the property as a gas station;

the more likely, if not obvious, responsible candidates for the cause of the petroleum contamination would have been those associated with the gas station.

On this basis, the Court granted summary judgment and dismissed the claim. The Court also rejected an argument that there was continuing damage that extended the time in which to bring an action. The Court found that the Plaintiffs had not pleaded any continuing damage and, further, that there was no evidence of continuing damage (the evidence was that the contamination was there, but not increasing or changing).

Tuesday, November 15, 2011

A 65-year old farmer in Waterdown (in the City of Hamilton, Ontario) has been ordered not to burn brush or tree limbs on his farm property except in accordance with conditions including:

1.The fire is to be attended and supervised at all times.

2.All fires are to be completely extinguished at the end of each working/burning day.

3.Burning is not to take place when winds will cause smoke to be an annoyance to nearby property or roadways.

4.All fires must be kept to a maximum size of 2m x 2m x 2m in height.

5.Only the burning of brush and tree limbs is permitted.

6.Equipment capable of extinguishing the fire at any time conditions warrant is to be on site at all times burning is carried out (i.e., Portable fire extinguishers, garden hose, portable pump and hose, bobcat etc.).

7.The owner must contact the Ministry of Environment and comply with the Environment Protection Act.

8.Open air burning shall not be carried out on Smog Alert days as declared by the City of Hamilton.

9.No more than three piles at the current location to be burned at a single time.

10.An area of 3m is to be cleared of all vegetation around the perimeter of each of the piles.

The fire inspection order was initially issued to the farmer in 2001. In 2002, the order was appealed unsuccessfully to the Fire Safety Commission. However, in 2004, the Superior Court of Justice allowed an appeal of the Commission decision on the basis of insufficient reasons. A second Commission hearing was held in 2009. Again the Commission upheld the inspection order.

Recently, the Superior Court of Justice heard an appeal by the farmer of the second Commission decision. In dismissing the appeal, the Court ruled:

The Commission’s reasons, taken as a whole, are transparent, intelligible and justifiable. We find no error, in fact or law, no misapprehension of the evidence and no miscarriage of justice. It was open to the Commission to find that the appellant’s proposed burn without each of the conditions would, on a balance of probabilities, be unsafe and pose a potential fire hazard to him, his neighbours and drivers travelling on adjoining highways. In doing so, the Commission considered the totality of the evidence and its findings were reasonable and well-supported by the evidence. In particular, its findings in respect of each of the impugned conditions met the standard of reasonableness.

The decision of the Commission clearly falls within the range of possible, acceptable outcomes that are defensible from a factual and legal perspective.

Saturday, November 12, 2011

Max Burt, a second generation poultry farmer from Gore Bay on Manitoulin Island, has lost his appeal to the Agriculture, Food and Rural Affairs Tribunal on the issue of chicken quota. He had requested that the Tribunal reverse the refusal of the Chicken Farmers of Ontario (CFO) to give him 2,040 units of quota to produce and market chicken to satisfy what he believes to be a local market demand. In the alternative, Burt sought an exemption from the requirement for quota. In asking to be provided with quota, Burt relied on the historical production of his father, Edward Burt, during the original qualifying period for broiler chicken quota in 1964-65.

The Tribunal saw the essence of the appeal as a request either for free quota or an exemption from quota. In its view, the absence of a compelling and satisfactory reason for the 46-year delay alone was sufficient reason to deny the request for a qualifying period chicken quota allotment. Further, the Tribunal found that Max Burt failed to prove qualifying production during the 1964-65 period and that he was not actually a producer during that time (his father was). The Tribunal was unable to find any authority on which it could extend the qualifying quota from father to son.

On the issue of the exemption, the Tribunal found that the request for an exemption was based on financial reasons - affordability. In dismissing this request, the tribunal wrote:

In our view, affordability cannot be the basis for the Tribunal to grant Max Burt an exemption from the Regulation, so as to permit him to produce and market 2,040 units of chicken. If we were to use affordability as an exemption criterion, it would render CFO's existing exemption policy, as reflected in section 2.02 of the Regulation, meaningless. Further, treating affordability as an exemption criterion could open a flood of exemption applications from some, if not all the other 14,000 registered chicken growers in the province. Finally, treating affordability as an exemption criterion would eventually undermine the chicken quota system, which is the foundation of the chicken supply management system in Ontario.

Friday, November 11, 2011

The National Energy Board (NEB) has made a ruling that the Alliance Pipeline in area of the Alexis Casino development in northwestern Alberta is not satisfactory for use there under current conditions. Various requirements for pipeline specifications and operations depend on class location. Class location is generally determined on the basis of how many people live and work in the vicinity of the pipeline. Class 1 locations feature low density populations. The Alexis Casino segment of the Alliance high-pressure gas pipeline is currently designated as a Class 2 location, but the NEB had suggested to Alliance that it would become a Class 3 location due to the development.

Alliance sought to maintain the Class 2 designation so that it could continue to use the pipeline as constructed at its current operating pressure. It argued that it has never seen more than 110 occupants during any visits to the casino since early 2008. Alliance estimates that up to 842 people can be present at the Casino site at a given time. Alliance has installed yellow-coloured reinforced concrete slabs over the pipeline as protection against any potential mechanical damage from equipment contact, three strips of yellow warning tape, and line makers along the right of way. It contends that these safety measures are sufficient to allow the pipeline to continue to operate under a Class 2 location designation.

The NEB disagreed with Alliance. The Board was of the view that the probability that significantly more than 20 persons could be present at the Casino site is high enough to, on its own motion, conclude that the designation of the area as Class 2 does not adequately address the possible consequences of failure at the Casino site. The Board found that the consequences of a failure at the Alexis Casino pipeline segment are potentially severe, given that up to 842 individuals concentrated in a localized, constrained area could be impacted. The pipeline must therefore be in compliance with Class 3 location requirements.

Despite its ruling, the NEB has given Alliance until May 31, 2013 - one and a half years - to bring the pipeline into conformity with the requirements that currently apply to the pipe.

Thursday, November 10, 2011

The US State Department has ordered an environmental assessment of the proposed Keystone XL pipeline in the US, meaning that the project is shelved until after the 2012 Presidential Election. Read CBC.ca's story at: Keystone XL delayed.

Tuesday, November 8, 2011

Ron and Helen Cowan purchased a farm near the Village of Earlton in the fall of 1991. They moved to the farm in the spring of 1992 and began a dairy farming operation there later that same summer. Although the farm seemed to enjoy a measure of success in its early years, it was later plagued by poor milk production, both in terms of quantity and quality. By 2002 circumstances were such that they had no choice but to shut down their dairy farm, and to sell their herd and dairy quota.

In an action against Hydro One, the Cowans alleged that the decline in their herd’s milk production was due to the presence of tingle voltage (or stray voltage) caused by the Hydro One system. A trial was held to determine if this was so and to assess the damages alleged to have been suffered. The Cowans claimed negligence and breach of contract against Hydro One and, in addition, made a claim for punitive damages. Justice Robbie Gordon dismissed the farmers' claims, finding that causation was not proved (i.e. the Cowans failed to show that their damages, which would have been assessed to be $823,053.77, were caused by Hydro One).

Tingle voltage and stray voltage are terms used to refer to the same phenomenon, namely, the difference in voltage potential between two points that a farm animal might make contact with at the same time. The word “potential” is used because it is only when an animal touches the two objects, each with a different voltage potential, that its body completes an electrical circuit allowing current to flow from one object, through the animal, to the other object. If the difference in voltage between the two contact points is high enough, the animal may feel a tingling sensation, and hence the term tingle voltage. In fact, what the animal is exposed to is the current in the circuit, not the voltage on the points of contact.

On the question of negligence, Justice Gordon ruled that Hydro One owed a duty of care to the Cowans to ensure that electricity was safely delivered to them. Also, their relationship was of sufficient proximity to warrant the existence of the duty of care - it would be reasonably foreseeable that a failure to provide electricity safely could result in harm to Hydro One's customers. In order to prove negligence, the Cowans had to prove conduct on the part of Hydro One that created an unreasonable risk of harm to them.

Justice Gordon found that tingle voltage levels in the Cowan barn were prone to frequent fluctuation due to the loads in use. Tingle voltage levels would also vary dramatically depending upon where in the barn one is situated. He was satisfied that on a given day, steady state tingle voltage levels at certain cow contact points will regularly exceed one volt; that on a given day, but with less frequency, steady state tingle voltage levels at certain cow contact points will exceed two volts but not exceed three volts; and, that on a given day, but with much less frequency, certain cow contact points will be exposed to transient tingle voltage levels in excess of three volts.

Justice Gordon also determined that, but for the Hydro One system, the tingle voltage on the Cowan farm was reduced to negligible levels. The question then was whether there any conduct on the part of Hydro One that created an unreasonable risk of harm (i.e. negligent conduct). The Cowans alleged: (1) Failure to ensure that the primary neutral was directly bonded to the secondary neutral by a jumper wire; (2) improperly placement of a sentinel light on the transformer pole; (3) failure to maintain adequate grounding along the F2 line; (4) failure to follow its standards and procedures for testing tingle voltage and resolving the tingle voltage issue at the Cowan farm; (5) failing to monitor and control current and voltage imbalance on the distribution system; and (6) failing to maintain a primary neutral wire of sufficient capacity.

Although Justice Gordon found that, in some instances, Hydro One could have done things differently, he noted that the standard of care expected of Hydro One is not perfection. That it could have taken steps that it did not was not the end of the inquiry. It was also necessary to determine whether those actions breached the required standard of care, that is, whether those actions created an objectively unreasonable risk of harm having regard to the likelihood of a known or foreseeable harm, the gravity of that harm, the burden of cost which would be incurred to prevent the injury, industry practice, compliance standards, and statutory or regulatory standards.

Following his analysis, Justice Gordon found that Hydro One's practice of notification of farmers about the risks of tingle voltage was inadequate. It was not enough to stuff bills with an information pamphlet on a few occasions. The standard of care required that Hydro One have direct contact with customers it knew to be potentially vulnerable to advise them of increased risk. Therefore, the Cowans were successful in establishing that Hydro One owed them a duty of care and breached the standard of care. However, it still remained to show that they had suffered damages that flowed from the breach of the standard.

Justice Gordon accepted that voltage of the level and nature of those found to exist on the Cowan farm could, over the long term, lead to health and production issues for dairy cows. He was not satisfied that such voltage levels adversely affect production without a contemporaneous effect on health, but he was satisfied that such voltage levels can lead to various health problems which can ultimately affect production. The question was still whether the damages suffered by the Cowans were caused by the negligence of Hydro One.

In the end, the Cowans were unable to prove this element of causation. Justice Gordon found that Hydro One proved on a balance of probabilities that inadequate farm labour likely contributed to production problems in the dairy herd. Other contributing factors could not be identified because of the inadequacy of the records kept by the Cowans. On the whole, Justice Gordon was not satisfied on a balance of probabilities that tingle voltage was a contributing factor to the production issues experienced on the Cowan farm. That it would have had a negative effect on production was belied by: (1) The positive production levels for the farm in 1995 and 1996; (2) the acceptable somatic cell counts recorded for most of the time the farm operated; and (3) the lack of health issues on the farm that ought to have been apparent had tingle voltage been causing significant stress to the cows.

Because causation was not proven, the Cowans' claim for breach of contract failed as well. Justice Gordon also addressed the defence put forward by Hydro One based on its "Conditions of Service", which are implied terms of its contract with its customers. The Conditions of Service currently limit Hydro One's liability for damages to those arising out of its negligence and exclude any liability for "any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise." These terms are set down by the Ontario Energy Board through the Distribution System Code. Justice Gordon ruled that the terms did not affect the Cowans' claim, as they came into effect in 2002 - long after the alleged negligent conduct of Hydro One.

Monday, November 7, 2011

Don’t miss one of the biggest agricultural events of the year.

At FCC Forums, speakers share their stories of success and overcoming challenges. These events are an opportunity to learn, inspire big ideas and network with business owners and operators just like you.

Sign up now for this year's Forum.Jamie Clarke – Extreme Adventurer, Author and Inspirational SpeakerJamie Clarke is an entrepreneur in the business of adventure. On May 23, 1997, after two previous attempts, Jamie became the ninth Canadian to summit Mount Everest. He did it again in 2010 as leader of Expedition Hanesbrands. Jamie has followed his passion for adventure from Mount Everest to climbing the Seven Summits and across the desolate sands of Arabia. He relates the importance of overcoming the fear of rejection as a major factor in reaching one’s goals and demonstrates how the life lessons he learned during his Mount Everest expeditions apply to everyday challenges. Join Jamie at this year’s FCC Forum where he will inspire you to be an adventurer on your own journey.

Michael “Pinball” Clemons – Vice-Chairman of Toronto Argonauts Football Club, Former CFL Head Coach and PlayerThe name “Pinball” Clemons brings to mind a remarkable football player, outstanding sportsman and prominent community member. As a former all-star running back, Grey Cup-winning coach, President and CEO, and now Vice-Chairman for the Toronto Argonauts, Pinball is a man of unquestionable character and spirit. Not only is he renowned for his achievements on the football field, Pinball’s aptitude for captivating and empowering an audience is undeniable. His presentation, Winning Against the Odds, exemplifies the capabilities of teamwork and can inspire you to tackle any challenge facing your operation.

Dr. John G. Fast - President, Family Enterprise SolutionsDr. Fast is an acclaimed author and sought-after inspirational speaker on topics related to family business, retirement, work-life balance, leadership and workplace integrity. He’s currently the founding partner and president of Family Enterprise Solutions, a management consulting and training organization through which he has emerged as one of Canada’s leading experts on family business. Dr. Fast’s presentation, Planning for Success, will help you create a blueprint for the long-term success of your operation.

Wednesday, November 2, 2011

Gary Coons, the MLA for North Coast in British Columbia, has sent a letter to the National Energy Board (NEB) expressing his concerns about changes to the NEB's Strategic Plan language. He notes a number of significant changes, including the replacement of the NEB's mission statement. Previously, the NEB sought to "promote safety, security, environmental protection and efficient energy infrastructure and markets in the Canadian public interest". The NEB now says that "WE REGULATE PIPELINES, ENERGY DEVELOPMENT AND TRADE IN THE CANADIAN PUBLIC INTEREST". Coons asks whether this change signifies that safety, security and environmental proteciton are no longer within the NEB's mandate. Coons also notes that the Board has removed the language referring to the "responsible development" of the energy industry. He says that these changes are of particular concern in the context of the ongoing Enbridge Northern Gateway Project application and in the context of growing public concern about the influence of "big oil" interests on government.

Tuesday, November 1, 2011

As part of its application for a project approval from the National Energy Board (NEB), Vantage Pipeline Canada ULC (Vantage) has filed a "Preliminary Project Abandonment Plan and Cost Estimate". Vantage plans to construct 578 km of 10" pipe through Alberta and Saskatchewan to the North Dakota border. The terrain through which the pipeline will cross is primarily farmland - either in cultivation or pasture. For all but 1 km of the proposed route, Vantage says that it will abandon the pipeline in place.

Only lands where there is prospective "future development" will see the pipeline removed from the ground once it has outlived its usefulness to Vantage.

Previously, the NEB had used an estimate of 20% pipe removal on abandonment as part of the "base case" for calculating future abandonment costs (for the purpose of setting advance abandonment funding). The 20% figure has obviously been abandoned by pipeline companies and the NEB. The cost of pipeline removal far outweighs the cost of doing nothing. Likewise, the cost of advance funding for doing nothing is far cheaper than advance funding for pipeline removal.

It may be that the preference of some landowners in the future will be to leave pipelines in place rather than to have them removed on abandonment. However, the decisions being made now by pipeline companies and endorsed by the NEB are likely to limit any choice landowners might have in the future. Many landowners today probably don't even know that their hands are being tied in this way.

If the NEB's abandonment funding program is premised on the assumption that pipeline companies will need to do virtually nothing in the future to deal with their obsolete infrastructure, then it is a failure. The funding will be insufficient to allow for future contingencies, let alone to allow for any landowner choice.

Lloyd Trodden Fined $52,500 For Constructing Wells Without A License

BRACEBRIDGE – On July 19, 2011, Lloyd Trodden pleaded guilty to seven violations under the Ontario Water Resources Act in relation to the construction of wells without a well contractor license. In February 2009, the ministry received a complaint from a well owner that a newly constructed well was contaminated with gasoline. An inspection by ministry officials confirmed that the drinking water well was contaminated with a petroleum product. The inspection process revealed that Mr. Trodden constructed the well and that he did not possess a valid well contractor license to construct wells in Ontario. Following an investigation, a number of additional wells were discovered that had been constructed by Mr. Trodden. A ministry record search indicated that Mr. Trodden did not have a valid Well Contractor Licence when the wells were being constructed.

Mr. Trodden was charged following an investigation by the ministry’s Investigations and Enforcement Branch. He was fined a total of $52,500 plus victim fine surcharges and given one year to pay the fine.

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.